WAZIRI UMARU FEDERAL POLYTECHNIC, BIRNIN KEBBI & ANOR v. KEBBI STATE BOARD OF INTERNAL REVENUE & ANOR
(2018)LCN/11916(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/S/11/2017
RATIO
JURISDICTION: WHETHER THE COURT IS TO DETERMINE SUBJECT MATTER
“The jurisdiction of the Court is determined by the subject matter and the claim(s) of the claimant as disclosed in the Writ of Summons and other originating process. Thus, the Court is enjoined to examine the entire content and claims submitted to it for adjudication in determining whether or not a Court has jurisdiction. See GOLDMARK (NIG) LTD V IBAFON CO. LTD (2012) 10 NWLR (Prt 1308) 291, ADETAYO V ADEMOLA (2010) 15 NWLR (Prt 1215) 169 and IRVING ASSEST & MANAGEMENT CO. LTD V ROCK TRUST INVESTMENT LTD (2017) 4 NWLR (Prt 1554) 152.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. WAZIRI UMARU FEDERAL POLYTECHNIC, BIRNIN KEBBI
2. THE RECTOR, WAZIRI UMARU FEDERAL POLYTECHNIC, BIRNIN KEBBI – Appellant(s)
AND
1. KEBBI STATE BOARD OF INTERNAL REVENUE
2. THE CHAIRMAN, KEBBI STATE BOARD OF INTERNAL REVENUE – Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Kebbi State which was delivered on 9th June, 2016. By motion on Notice filed on 29th March, 2016, the respondents herein who were the applicants at the trial Court sought for the following prayers:-
1. An order allowing the applicants to distrain any land premises or place of business in respect of which the 1st respondent is the owner.
2. An order allowing the applicants to distrain against any movable goods, chattel bond or securities or any kind of property belonging to the 1st respondent as final and conclusive tax due to the applicant.
3. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances of this case.
Upon being served, respondents now appellants filed a counter affidavit as well as a notice of preliminary objection which were contemporaneously heard. The preliminary objection was overruled and the trial Court assumed jurisdiction and resolved the issue on the merit at page 125 of the record of appeal as follows: –
”Having observed earlier in this judgment that the applicants did not provide the breakdown of the amount remitted and that which was under remitted, the discretion of the Court will not be exercised to grant the reliefs being sought by the applicants in this case as doing so will not represent the interest of justice but I hereby direct that the respondents should make available of all their financial records for the period under review for the investigation of the applicants team of auditors and to attend any meeting they might be invited to by the applicants in order to ascertain the actual amount under remitted and for the respondents (Waziri Umaru Federal Polytechnic, Birnin Kebbi) to remit same to the applicants who are the Board of Internal Revenue; Kebbi State, Birnin Kebbi. Failure to comply with this directive will attract sanction by the Court as the order to distrain by the applicants will then be granted.”
It is against the above, appellants filed this appeal. Their notice of appeal at pages 126 to 129 of the record of appeal contains five grounds of appeal. The said five grounds (shorn of particulars) are reproduced hereunder as follows:-
GROUND ONE
The learned trial judge erred in law when he assumed jurisdiction over a matter that was clearly outside the jurisdiction of the Honourable Court.
GROUND TWO
The learned trial judge erred in law when he held ?I hereby direct that the respondents should make available of all their financial records for the period under review for the investigation of the Appellants team of auditors and to attend any meeting they might be invited to by the applicants in order to ascertain the actual amount under ? remitted and for the respondents (Waziri Umaru Federal Polytechnic, Birnin Kebbi) to remit same to the Applicants who are the Board of Internal Revenue; Kebbi State, Birnin Kebbi and this occasioned miscarriage of justice.?
GROUND THREE
The learned trial judge erred in law when he held, but I hereby direct that the respondents should make available all the financial records for the period under review for the investigation of the applicants and to attend any meeting they might be invited to by the applicants in order to ascertain the actual amount under remitted and for the respondents to remit same to the applicants who are Board of Internal Revenue, Kebbi State, Birnin Kebbi. And failure to comply with this directive will attract sanction from the Court as the order to distrain by the Applicants will then be granted. The issue is resolved in favour of the Applicants? and this occasioned miscarriage of justice.
GROUND FOUR
The Honourable trial judge erred in law when he held in the last paragraph of this judgment that there was under remittance by the respondents when there was no such evidence before the Court.
GROUND FIVE
The learned trial judge erred in law when he proceeded to make orders after having earlier refused to exercise the Court’s discretion in favour of the applicants.
In the appellants’ brief of argument deemed filed on 1/2/2018, settled by Abubakar Abdullahi Esq. three issues were distilled for the determination of this appeal as follows: –
1. Whether the entire proceedings of the lower Court in Suit No. KB/HC/M.151/2016 is not liable to be set aside and struck out same having been conducted without jurisdiction. (Distilled from ground 1).
2. Whether the subsequent orders of the Court to wit; to make available all the financial records of the appellants from 2006 – 2011 and to attend meetings called by the respondents after coming to conclusion that the respondents have not made out their case is sustainable or not. (Distilled from grounds 2, 3, and 5).
3. Whether the learned trial judge was right to have concluded as he did that there was under remittance of the taxes by the appellants without specifically making a finding on the issue in the face of the conflicting affidavits of the parties (Distilled from ground 4).
Learned counsel for the respondents have filed no brief and shall therefore not be heard in this appeal.
On issue No.1, learned appellants? counsel contended that in determining the jurisdiction of the trial Court, it is the reliefs sought by the respondents in the supporting affidavit to their motion on notice that has to be examined. He referred to the averments in paragraphs 4 (iii), (iv), (v), (viii) and (xxi) of the said supporting affidavit in submitting that the subject matter of the respondents claims/reliefs which was anchored on taxes, alleged under deduction and or under remittance by the appellants fall squarely under Section 251 (1) (b) and (p) of the 1999 Constitution.
Still in argument, he submitted that the 1st appellant being an institution of higher learning established by the Federal Government in which case the Court with jurisdiction to hear and determine the matter is the Federal High Court. He referred to F.M.B.N V LAGOS STATE GOVERNMENT (2010) 5 NWLR (Prt 1188) 570 at 600, OBIUWEUBI V C.B.N (2010) 45 NSCQR 51 at 77 – 78 and OKPARA V AMADI (2013) 39 WRN 1.
The jurisdiction of the Court is determined by the subject matter and the claim(s) of the claimant as disclosed in the Writ of Summons and other originating process. Thus, the Court is enjoined to examine the entire content and claims submitted to it for adjudication in determining whether or not a Court has jurisdiction. See GOLDMARK (NIG) LTD V IBAFON CO. LTD (2012) 10 NWLR (Prt 1308) 291, ADETAYO V ADEMOLA (2010) 15 NWLR (Prt 1215) 169 and IRVING ASSEST & MANAGEMENT CO. LTD V ROCK TRUST INVESTMENT LTD (2017) 4 NWLR (Prt 1554) 152.
The substratum of the respondents claim before the trial Court is comprehensively contained in the affidavit in support of the motion papers. Paragraphs 4 (iii), (iv), (v), (viii) and (xxi) of the said supporting affidavit reads: –
(iii) That it is the duty of the 1st Respondent to make deduction of all pay as you earn (PAYE) from monthly earning and development levy annually per head of her employee and withholding taxes collected from paid (Individual/enterprises) and make remittance to the 1st Appellant.
(iv) That the 1st Respondent is an agent of collection of the 1st Applicant.
(v) That the 1st Respondent has been deducting all pay as you earn (paye) as and when due from the monthly earnings and development levy annually per head of its employee and withholding taxes from contractors (Individual/Enterprise) but under remitting to the 1st Applicant.
(viii) That the tax investigation/Audit carried out on the 1st Respondent covering from the year 2006 – 2011 revealed an under remittance of the sums of One Billion Five Hundred and Fifty Two Million, Six Hundred and Eighty Seven Thousand and Fifty Naira and Fifty Four Kobo (N1, 552, 687, 050.54) only dated 20th day of November, 2012 and the report was served on the 1st Respondent through the 2nd Respondent dated 20th November, 2012, the said document titled Report of statutory Tax Audit for the periods of 2006 – 2011 is hereby marked as Annexure B.R 4A and we shall be relying on same.
The said report is accompanied by demand Notice of the said liabilities marked Annexure 4B.
(xxi) That the 1st Respondent is not denying or disputing its legal obligation as an agent of collection to make deduction of all pay as you earn (PAYE) from the monthly earning and development levy annually per head of her employee withholding taxes from payments to contractors (individual/Enterprise) and make remittance to the 1st Applicant as it has been doing it but making under payment and under deductions as per provisions of six schedule of the Personal Income Tax Act. 104 of 1999 as amended.
Jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or tribunal to entertain a case before it. It is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution and or law that it will have the judicial power and authority to entertain or adjudicate upon any cause or matter bought before it. See A.G. FEDERATION V A.G, ANAMBRA STATE (2018) 6 NWLR (Prt 1615) 314 at 336.
The jurisdiction of the trial Court is conferred by Section 272 of the 1999 Constitution (as amended) and it read as follows: –
272(1) subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue, or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture punishment or other liability in respect of an offence committed by any person.?
It is an elementary and fundamental principle of law that what has been prohibited is not allowed. Thus, the High Court of a State is not allowed to delve into any of the cause or matter listed in Section 251 of the Constitution. In other words, the High Court of the State lacks the jurisdiction to hear and determine all matter listed Section 251 of the 1999 Constitution.
The absence of such requisite jurisdiction would render any proceedings conducted by such a Court an exercise in futility. There is considerable force in the submission that the trial Court is not vested with the jurisdiction to hear and determine the subject matter of the respondent’s claim being under remittance of both the pay as you earn (PAYE) from the appellant’s employees and withholding of tax from its contractor other than limited liability companies.
The starting point is that the Federal High Court is a specialized Court, with limited jurisdiction to hear and determine cases concerning those items listed in Section 251 of the 1999 Constitution. See OGBEBOR V I.N.E.C (2018) 6 NWLR (Prt 1614) 1 at 27 – 28.
Secondly, the provisions of Section 4 (2) of the 1999 Constitution give the National Assembly executive power to legislate on taxation of income. Although taxation is listed under the exclusive legislative list, the said Constitution also provides that collection and administration of any law imposing such tax may be carried out by State Government or any authority of the state.
See Item 59 of the Exclusive Legislative list, Part 1 of the Second Schedule to the Constitution and also Item D paragraph 7 of the concurrent list in Part II of the Second Schedule.
I have stated that the Federal High Court is a specialized Court to hear and determine item listed in Section 251 of the 1999 Constitution. By the combined effect of Section 251 (1) (a) and Section 7 (1) (c) of the Federal High Court shall hear and determine causes or matters-
Connected with or pertaining to the taxation of established or carrying on business in Nigeria and all other persons subject to Federal taxation. The provisions of Section 1 (a) and 2 (1) (a) and (2) of the Personal Income Tax Act Cap P8 Laws of the Federation of Nigeria, 2004 also read as follows: –
1. There is hereby imposed a tax on the income; (a) of individuals, communities and families and,
2. (1) Tax of an amount to be determined from the table set out in the Sixth Schedule (in this Act referred to as income tax) shall be payable for each year assessment on the income of-
(a) Every individual other than persons covered under paragraph (b) of this subsection or corporation sole or body of individual deemed to be resident for that year in the relevant state under the provisions of this Act.
The 1st appellant being persons not covered under Section 2 (b) of the Personal Income Tax Act or a Companies and Allied Matter Act, the State High Court has the requisite jurisdiction to entertain the subject of the suit under consideration. See LAGOS STATE INTERNAL REVENUE BOARD V MOTOROLA NIG. LTD (2012) LPELR 14712. Therefore, the trial Court was right to have assumed jurisdiction after overruling the appellants’ preliminary objection.
Issues Nos. 2 & 3 questions the propriety of the trial Court’s directive to the appellants to make available their financial records available to the respondents and conclusion on under remittance of taxes without specific findings. Specifically, on the trial Court’s directives to the appellants to make available their financial records to the respondents or risk the distrain order, learned appellants’ counsel submitted that it was indiscreet because there was no facts to support it. He referred to SPRING BANK PLC V SECURE ELECT. TECH PLC (2013) 45 WRN 167 at 173.
I have right from the onset reproduced the findings of the trial Court to the effect that it declined to grant distraining order in favour of the respondents herein because there was no sufficient materials to support the reliefs sought. In a dramatic twist the Court directed the appellants to submit their financial records and attend meetings if invited by the respondents. It is settled that a Court has no power to award to a plaintiff more than what he has claimed. The rationale for the principle is not farfetched. A Court of law is not a charitable institution dolling out reliefs which has not been claimed. In NWANYA V NWANYA (1987) 3 NWLR (Prt 62) 697 at 704, OLATAWURA, JSC (as he then was) said:
”We have consistently been reminded that our Court is not Father Christmas, hence he who comes to Court must come prepared to prove his claim in accordance with the law.?
In the same vein, the Supreme Court in the case of EKPENYONG V NYONG (1975) 2 SC 71 AT 80 reiterated the principle thus:
”Secondly, as we think that as the relief granted by the learned trial judge were not those sought by the applicant he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that a Court is without power to award to a claimant that which he did not claim.”
The totality of the reliefs sought by the respondents at the trial Court been equitable remedy; the Court can order an injunction even where it is not specifically claimed. However, such unclaimed reliefs must appear incidental and or necessary to protect established right. See WILLIAMS V SNONDEN (1880) AN 124 and ATOLAGBE V SHORUN (1985) 4 SC (Prt 1) 250 at 286. Also in GARBA V UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Prt 18) 550, it was held that where a person has not specifically asked for a relief from a trial Court, a trial Court has power to grant such relief as a consequential relief. However, a consequential order must be one made giving effect to the judgment, which it follows. It is not an order made subsequent to a judgment, which detracts from the judgment or contains extraneous matters. See ILONA V IDAKWO (2003) 5 SC 216 at 235.
In the instant case, the directive given to the appellants to submit their financial records for investigation by the respondents was not made as a consequential order to any judgment but a punitive order based on a futuristic litigation not to talk of subsequent judgment. The trial Court is clearly without power to give such directive and or grant such relief to the respondents as it has done.
Finally, on the conclusion reached by the trial Court that there was under remittance of taxes, learned appellants’ counsel referred copiously to paragraph 4 (v) and (vii) of supporting affidavit as well as paragraphs 11, 12, 13, 14 and 16 of the counter – affidavit to contend that there was serious conflicts that need to be resolved by oral evidence or analysis. He submitted that the conclusion arrived at by the trial Court was not supported by evidence and therefore perverse.
At page 124 of the record of appeal, learned trial judge found as follows: –
”The Respondents disputed the huge amount claimed by the Applicants who could not specify which amount out of the total debt alleged is under deducted and which is under remitted as there is a word of difference between the two. It is also the contention of the Respondent that by the deposition of the Applicants in paragraphs 4 (vii – x) exhibits BR1 2 and 4 the amount so assessed cannot be correct and if the amount being claimed by the Applicants as due to them includes amount realized from taxes not accruable to them as they have done in this case, the amount in the said assessment notice cannot be said to be final.?
Notwithstanding the trial Court’s findings that there was no records of the respondents assessed by the applicants and neither was there any evidence from which the Court can determine how much was remitted, the trial Court concluded that there was under remittance, the basis for which it made an order directing the appellants to surrender their financial records to the respondents.
I have held elsewhere in this judgment that no Court is permitted to make findings unsupported by the evidence before it. It is also trite law that a decision of a Court is perverse when it ignores the facts or evidence, before it and, when considered as a whole; amount to a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and set it aside.
See NEPA V OSOSANYA (2004) 1 SC (Prt 1) 159 at 175 and AGBOMEJI V BAKARE (1998) 9 NWLR (Prt 564) 1 at 8.
In the final result and for all the reasons that I have given above, this appeal succeeds in part and it is hereby allowed. The decision of the trial Court to the effect that there was under remittance of taxes and that the appellants shall make available all their financial records for the investigation of the respondents as well as to attend meetings if invited by the respondents are hereby set aside.
Parties to bear their respective costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading, in advance, the lead judgment just delivered by my learned brother, Muhammed Lawal Shuaibu, JCA. I agree with the entire reasoning therein for the conclusion that the appeal has partial merit. It is therefore allowed in part.
I also subscribe to all the consequential orders made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in total agreement with his reasoning and conclusions in allowing the appeal which succeeds in part. I also abide by other consequential orders made thereto.
Appearances:
B. B. OrpinFor Appellant(s)
Bagudu Abubakar DCL, with him,
Hadiza M. Tukur, ADPP, MOJ,
Kebbi StateFor Respondent(s)
